specially concurring:
I concur with the majority’s conclusion that sufficient evidence existed without the shotgun to support defendant’s conviction. I believe, however, that the search of defendant’s bedroom was not unlawful and therefore the admission of the shotgun into evidence was proper.
First, I believe that the search was proper as a search incident to a lawful arrest. In Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034, the Supreme Court held that it is reasonable and proper for officers to search an arrestee’s person and the immediate area from which the arrestee might gain possession of a weapon. (395 U.S. at 763, 23 L. Ed. 2d at 694, 89 S. Ct. at 2040.) Although defendant was arrested outside and handcuffed, he was brought back inside the trailer so he could obtain a shirt and shoes. While there, he was free to move about the trailer, albeit with a deputy escorting him, and Sheriff Vazzi testified that the handcuffs did not completely immobilize the defendant. Under the circumstances, a protective sweep of the premises to locate and seize a weapon police knew to be present was not unreasonable. A protective sweep is cursory in nature, and the scope of such a search is strictly limited to that which is necessary to ensure the safety of the officers or others, (Maryland v. Buie (1990), 494 U.S. 325, 327, 108 L. Ed. 2d 276, 281, 110 S. Ct. 1093, 1094.) Reviewing the record, I believe that the initial search which produced the shotgun was a protective sweep which was limited to areas from which defendant could have obtained a weapon, not an exhaustive search.
Second, and more importantly, the presence of the children constituted exigent circumstances justifying a warrantless search. Under the exigent-circumstances exception, police may search a dwelling where the totality of the circumstances known to the officers at the time demonstrates the existence of an emergency necessitating immediate action. In the present case the officers knew there were children present, that at least one weapon was in the dwelling, and that defendant was intoxicated and had already bludgeoned his wife with the shotgun, forcing her to flee for her safety. In response to questioning by the court, Sheriff Vazzi testified that the officer’s purpose in entering the dwelling was to ensure the safety of the children. The record also demonstrates that the scope of the search was no greater than that necessitated by the exigency. Given the facts in this case, I believe there existed sufficient exigent circumstances to justify the warrantless search. United States v. Antwine (8th Cir. 1989), 873 F.2d 1144, 1147.